United Kingdom v. European Union
First there was Grexit and now there is Brexit. The never-ending saga of which country will next leave the European Union (EU) continues.
Last week, Prime Minister David Cameron announced that he had struck an historic deal with the 27 other countries that are part of the EU. The ‘New Deal’ would give Britain special status, impose restrictions on the benefits European migrants can claim in the United Kingdom, and – perhaps most importantly – exempt the UK from the “ever closer union” treaty provision that underpins the steady amalgamation of European states.
Britons will now vote to accept this ‘New Deal’ in a referendum on the 23rd of June. The other option on the ballot: leave the EU.
As soon as Mr. Cameron announced the referendum, opponents were calling it an insignificant deal. The eccentric Conservative Member of Parliament Jacob Rees-Mogg had once quipped that it was “very thin gruel”.
That sentiment was echoed widely as a powerful – and unusual – coalition of anti-EU campaigners mobilized, including the Justice Secretary Michael Gove, the dishevelled Mayor of London Boris Johnson, and the left-wing controversy-courter George Galloway.
A central criticism of this “thin gruel” by the ‘Leave’ campaign is that the European Court of Justice (ECJ) may choose to overturn the agreement struck by Cameron, even after it is accepted by the British public.
The ECJ is bound to only apply the treaties of the European Union, chiefly the Lisbon Treaty signed in 2007. The ‘Leave’ camp argues that the Cameron agreement is an ‘international law declaration’ and does not propose any change to the existing treaties. Therefore, technically the ECJ can overrule the agreement if it is challenged.
“The eccentric Conservative Member of Parliament Jacob Rees-Mogg had once quipped that [the referendum] was “very thin gruel”.”
The greatest threat supposedly comes from Eastern European trade unions, who may potentially contest the new benefits provisions for being contrary to European law, since the deal proposes to discriminate against migrants from that region.
Moreover, in a controversial doctrine developed in the past decade, the ECJ maintains that European law is supreme against all national laws. Therefore, even if the agreement was implemented in domestic law, the court could technically overrule it.
The ‘Stay’ campaign says that these predictions are implausible. Both David Cameron and the President of the European Council Donald Tusk have stated that the agreement is “legally binding and irreversible”. Furthermore, they have lodged the agreement with the United Nations as a treaty.
But anti-EU campaigners maintain that filing the agreement with the UN does not protect it from the ECJ.
They argue that the ECJ considers the promotion of ‘ever closer union’ to be a key part of their mandate. A declaration made outside the formal structures of the EU, and one that threatens to turn the tide against political union, will not be allowed to prevail over the quasi-constitutional Lisbon Treaty.
Only time will tell how the ECJ deals with the new agreement. But considering the highly activist history of the court and its deficit of political tact, the fear of ‘Leave’ supporters is not baseless.
If the ECJ does decide to join the melee, then Brexit may become an almighty legal battle, with international law, European law, and national law pitted against each other in an epic fight for supremacy.
Adnan Subzwari (2L) is News Editor for Juris Diction.